Contemporaneous Range of Motion Testing Not Required
The Court of Appeals case, Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011), held that contemporaneous range of motion testing is not a prerequisite to establishing a “serious injury” under the “permanent consequential limitation” and “significant limitation” categories of threshold law.
I. PERL V. MEHER
In Perl, the Court of Appeals decided a trio of cases, Perl v. Meher, Adler v. Bayer, and Travis v. Batchi. In Perl and Adler, only the “permanent consequential limitation” and “significant limitation” categories were implicated while the Travis case also involved the “90/180” category.
The plaintiffs in Perl and Adler were both examined by the same physician, Dr. Bleicher. In both cases, Dr. Bleicher testified that he performed various tests on the plaintiffs shortly after their respective accidents but did not quantify the range of motion of the body parts tested. Dr. Bleicher then examined the plaintiffs several years later and set forth numeric range of motion measurements using instruments. The defendants in both cases argued that the quantified range of motion testing was performed too long after the accident and insufficient to allow the issues of permanency and significance of the injuries to go to the jury.
The Court of Appeals disagreed and held that requiring contemporaneous numeric range of motion measurements could have “perverse” results. The Court held that a plaintiff should not be penalized for failing to seek out a physician who knows how to create the right kind of record for litigation immediately after the accident. The Court explained that contemporaneous range of motion measurements is important mainly to prove “causation”. If “causation” is already proven, “it is not unreasonable to measure the ‘severity’ of the injuries at a later time”. The Court therefore rejected a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.
The defendants in Perl and Adler also argued that the plaintiffs’ injuries were the result of degeneration pre-existing the accident. In opposition, the plaintiffs submitted a radiological affirmation which simply did not rule out the accident as a possible cause of the injuries and a medical affirmation establishing causation based solely upon the fact that no prior injuries or conditions were reported by the plaintiffs. The Court held that plaintiffs’ evidence was sufficient to raise an issue of fact on causation.
With respect to the Travis case, the main issue concerned the “90/180” category. The Court of Appeals affirmed the lower court’s ruling and held that the plaintiff failed to raise an issue of fact with respect to the “90/180” category. In Travis, the plaintiff acknowledged that she was able to do some work at home less than three months after the accident. Additionally, none of her physicians opined on her ability to perform activities until 111 days after the accident at which time she was found able to perform the essential functions of her job though with restrictions.
As a side note the Court held that while the defense expert report indicated that the limited range of motion as exhibited by the plaintiff was self-imposed, such opinion actually goes to the credibility of the plaintiff and is in itself a question of fact to be resolved by the jury.
The practical implication of the Perl decision is that when opposing a threshold motion, the medical affirmation submitted by the plaintiff does not need to include “contemporaneous” range of motion numerical testing to raise an issue of fact. While favorable to the plaintiffs, this is not likely to change the legal landscape in the area of threshold law. Since the Toure decision came down, most plaintiff’s firms have adopted the practice of requesting their physician to conduct contemporaneous range of motion testing on the plaintiffs. Nevertheless, this decision signals a trend in case law in favor of the plaintiffs.
Additionally, the decision also indicates that the plaintiff would be able to raise an issue of fact as to causation by merely submitting a radiological affirmation “not precluding” a causal connection between the accident and the injuries and a medical affirmation attesting to causation based solely upon the fact that no prior injuries or conditions were reported. This holding essentially allows the issue of causation to go to the jury in practically all cases where there is no evidence of any prior injuries.
Finally, this decision leaves the law pertaining to the “90/180” category of the threshold law intact. The plaintiff still must prove that he or she was prevented from performing “substantially all”, not only some, of the daily activities for at least 90 days during the first 180 days following the accident.
II. SUBSEQUENT CASE LAW
The case law that followed the Perl decision has further clarified the limits of the opinion. In Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 (1 Dept. 2012), the Court held that “while the Perl decision rejected a rule that would make contemporaneous quantitative measurements a prerequisite to recovery, it confirmed the necessity of some type of contemporaneous treatment to establish that a plaintiff’s injuries were causally related to the incident in question.”
The First Department in Rosa explained that a contemporaneous doctor’s report is important to proof of causation as “an examination by a doctor years later cannot reliably connect the symptoms with the accident.” The court held that the plaintiff in that case failed to raise an issue of fact when she presented no admissible proof that she saw any medical provider for any evaluation until 5 1/2 months after the accident.
In Cirillo v. Swan, 95 A.D.3d 1401, 943 N.Y.S.2d 300 (3 Dept. 2012), the Third Department held that the plaintiff failed to raise an issue of fact when her family physician did not provide any explanation or objective medical basis for his belief that plaintiff’s limitations were unrelated to her several prior complaints for which she had received extensive treatment. The Court further held that the plaintiff’s spine pain management specialist’s affidavit was inadequate in that he wholly failed to address plaintiff’s prior back condition and injuries nor did he sufficiently describe the objective tests used to determine plaintiff’s limitations.